The Lanham Act protects trademark holders against consumer confusion by providing a cause of action against the use of similar marks on similar products if that use creates a likelihood of confusion. The likelihood of confusion analysis is often focused on confusion at the time of purchase, but the U.S. Court of Appeals for the Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth, and Federal Circuits permit mark holders to allege infringement based on presale, initial-interest confusion (whereas the First, Fourth, and Eleventh Circuits do not).

Earlier this year, the U.S. Court of Appeals for the Eighth Circuit joined the majority of circuits in permitting recovery for initial-interest confusion in certain circumstances. Select Comfort Corp. v. Baxter, 996 F.3d 925 (8th Cir. 2021), cert. filed, No. 21-212. The Supreme Court is currently considering whether to review that decision and potentially resolve the circuit split on this issue. We report here on that case.